APHC010029362025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3369] WEDNESDAY ,THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL PETITION NO: 569/2025 Between: Kunchem Avinash Benjimin ...PETITIONER/ACCUSED AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1. R SIVA SAI SWARUP Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR The Court made the following ORDER: 1. This Criminal Petition under Sections 480 and 483 of Bharatiya Nyaya Suraksha Sanhita, 2023 (for short, ‘BNSS’) has been filed by the petitioner/A.5, seeking regular bail Crime No.382 of 2024 of Kancharapalem Police Station, Visakhapatnam, registered for the offences punishable under Sections 109, 308(5), 318(4), 131, 127(2), 351(2), 61(2) of Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS’) and Section 67 of I.T. Act, against the petitioner/accused and other accused. 2. The case of the prosecution is that, this is a Honey Trap occurred before 05.10.2024 at NGGO’s Colony, Murali Nagar, Visakhapatnam. The complainant, who owns WABI ART CAFÉ in Visalakshi Nagar, has been operating the café for two years. Six months before the incident, A.1, along 2 with a friend named Udaya, visited the café and introduced herself as a Digital Marketer, offering help to develop the business. One day, A.1 requested the complainant to drive her somewhere, during which she sprayed something on his face and shoulders. When questioned, she claimed it was a body mist. Soon after, the complainant felt drowsy and asked to be dropped back at the café. A few days later, A.1 invited him to her house for dinner, during which she offered him juice, insisting he drink it. The complainant became drowsy again and later woke up at her house the following morning. (a) On that day evening, A.1 had shown some imitate photos in her mobile, which he was unaware of him, on seeing them he shocked and questioned about the photos, but she skipped the topic and compelled the defacto complainant to her parties to her friend A.2’s guest house situated in Bheemili. Later, A.1 started demanding him to marry her and to give divorce to his wife, for which he denied and that A.1 threatening him that if he failed to marry her she would give false rape case against him. A.1 also extorted his phone by showing the weapon by putting fear of death and got all his personal information and shared his live location on her mobile to track him continually. (b) After the defacto complainant locked house on 24.05.2024, A.1 forced him to board her car to go to function near Simhachalam. A.1 always compelled the defacto complainant to get into her drugs business with her partner Zoya, who is resident of Hyderabad, for which, he denied. As the defacto complainant denied A.1 broker a glass a bottle and attacked him to kill, while she was in phone conversation with boy, the defacto complainant ran away from her home on 29.07.2024. Basing on the report of the complainant, this crime is registered against all the accused. 3. Learned counsel for the petitioner/A5 contends that the offences alleged against the petitioner are punishable up to ten years and the crime is registered against the petitioner is under Sections 109, 308(5), 318(4), 131, 127(2), 351(2), 61(2) of BNS and Section 67 of I.T. Act. 3 4. On the other hand, learned Assistant Public Prosecutor submits that the investigation is not completed and Charge Sheet is not filed within sixty days from the date of the arrest of the petitioner. 5. Heard both sides. Perused the entire material on record. 6. Learned counsel for the petitioner placed reliance on the decision reported in Rajeev Chaudhary vs. State (N.C.T.) of Delhi1, wherein the Hon’ble Apex Court held that: “4.xxx Section 167 is a provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered pending investigation. We are concerned with the interpretation of proviso (a) of Section 167(2) which reads thus: “167. Procedure when investigation cannot be completed in twenty-four hours.—(1) *** (2)*** Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii)***” 5. Further, Section 386 IPC provides as under: “386. Extortion by putting a person in fear of death or grievous hurt.— Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover 1 AIR 2001 Supreme Court 2369 4 only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.” 7. Learned counsel for the petitioner further contends that the right of default bail under Section 167(2) of the Cr.P.C. is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. 8. Considering the fact that having not completed the investigation within sixty days from the date of arrest of the accused, this Court is of the view that the petitioner is entitled for default bail as contemplated under Section 167(2) of the Cr.P.C. 9. Accordingly, the Criminal Petition is allowed with the following conditions: i.) The petitioner/A.5 shall be released on bail on his executing a personal bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties for a like sum each to the satisfaction of the learned VII Additional Judicial Magistrate of First Class, Visakhapatnam. ii) The petitioner/A5 is directed to appear before the concerned Station House Officer once in a Fortnight i.e. on Sunday between 10.00 am to 01.00 pm for a period of three (3) months. iii) The petitioner/A.5 shall not directly or indirectly contact or threaten the witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper evidence and shall co-operate with the investigation. 5 As a sequel, miscellaneous applications, pending if any, shall stand closed. _____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 05.03.2025 MS 6 THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO CRIMINAL PETITION NO.569 of 2025 Date: 05.03.2025 MS